The Reverend Sharpe v (1) The Worcester Diocesan Board of Finance Ltd & (2) The Bishop of Worcester (2013) UKEAT/0243/12

The Reverend Sharpe, an ordained Church of England Minister, brought claims for unfair dismissal and whistleblowing. On 15 th  February 2012, following a pre-hearing review, the Employment Tribunal concluded that he was neither an employee nor a worker within the meaning of the Employment Rights Act 1996. The Tribunal therefore had no jurisdiction to hear the claims.

Reverend’s Sharpe’s appeal to the EAT was heard in November 2012 and was stayed pending the judgment of the Supreme Court in The President of the Methodist Conference v Preston [2013] UKSC 29, which was handed down in May 2013. The Supreme Court concluded that Ms Preston was not an employee of the Methodist Church within the meaning of section 230 of the Employment Rights Act 1996, and therefore could not proceed with her unfair dismissal claim.

After considering a number of authorities including Preston and Percy v Church of Scotland Board of National Mission [2006] 2 AC 28 (HL), Mrs Justice Cox, sitting in the EAT, upheld the Reverend Sharpe’s appeal on a number of grounds and remitted the case back to the Employment Tribunal for a fresh hearing to decide whether the Reverend was an employee or a worker.

Mrs Justice Cox reached the following conclusions in upholding Reverend Sharpe’s appeal:

Ground 1: Failure to apply binding authority

The Employment Tribunal’s focus on whether it was necessary to imply a contract was misconceived. Following Preston , the real question was whether the relationship described in the documents were characteristic of a contract and, if so, whether it was a contract of employment.

Grounds 2, 3 and 4: Errors relating to the contract and appropriate contracting party

The Employment Tribunal’s finding that canon law precluded a contractual relationship was wrong. Many of the terms attached to the post of rector are dictated or shaped by canon law, but that did not preclude the Reverend carrying out his work pursuant to a contract of employment. Drawing analogies with other areas, it was noted that the pay and conditions of teachers and many local government officers are regulated by statutory instrument and statute respectively. The fact of canon law increased the number of standard, or non-negotiable, terms and conditions, but it did not preclude the existence of a contract of employment.

The Employment Tribunal’s finding that the Bishop’s Papers were neither representative of, nor evidence of a contract, not apt for incorporation and could not be considered as contractual, was perverse. The Bishop’s papers were specific to the diocese and the Bishop of Worcester and included terms relating to sick pay, pension, holiday and appraisals. It was precisely this sort of documentation, together with the other relevant Canons and instruments, against which the parties’ intentions should have been carefully analysed.

In terms of control, it was concluded that how often a Bishop uses his powers in practice is not determinative of his legal relationship with the Claimant and whether that relationship is contractual. What is important is the existence of residuary powers of control and discipline, not the extent or frequency of their application in practice.

Ground 5: Expert evidence

Mrs Justice Cox considered that the Respondents’ use of expert witness evidence from a professor of law at the original Tribunal hearing, and the Tribunal’s failure to consider its admissibility, including on the central issues in the claim, was an error.

Ground 6: Errors in the approach to the question whether the Claimant was a “worker”

It was wrong to determine this issue on the basis of the existence, or otherwise, of a contract. The words contained within section 43K (1)(b) of the Employment Rights Act 1996, “terms o­­n which he or she is or was engaged to do the work”; do not imply the existence of a contract.

The points raised by the Employment Tribunal relating to the Claimant’s alleged unfettered ability to substitute a delegate to perform his duties were found to be contrary to the Tribunal’s findings of fact. The Claimant could only delegate where he was unable to discharge his duties and any delegate must have been licenced or approved by the Bishop. The Claimant would not pay the substitute himself. Thus, it was held that the Reverend’s qualified right to delegate did not detract from his personal obligation to carry out his work.

The Reverend Sharpe has been supported throughout his claim and appeal by the faith workers’ branch of Unite the Union. He was represented at the EAT hearing by:

John Bowers QC of Littleton Chambers and David Campion of Garden Court North Chambers, instructed by Stephen Pinder at EAD Solicitors.

Quick links

28th November 2013 - Rector to sue church over harassment from parishioners - The Telegraphy

29th November 2013 - Vicar claiming he was abused...wins permission to sue God - The Daily Mail

29th November 2013 - Church of England 'harassed Vicar' case to be heard again - BBC

29th November 2013 - Vicar wins appeal in battle to sue Church - Birmingham Mail

4th December 2013 - Legal fight won by Vicar form near Tenbury - Ludlow Advertiser